§ 53-11-452 — Real property subject to forfeiture due to illegal drug-related activities - Procedure

Tennessee § 53-11-452

• Jurisdiction: Tennessee
• Title: 53

Text

(a) (1) The following real property shall be subject to forfeiture to the state and no property right shall exist in the property: (A) All real property, including any right, title and interest in the whole of or any part of any lot or tract of land and any appurtenances or improvements that is used in any manner or part either to commit a violation of § 39-17-417(i) or (j) , or in the commission of three (3) or more acts occurring on three (3) or more separate days within a sixty-day period, and each act results in a felony conviction under title 39, chapter 17, part 4; and (B) Any real property, including any right, title and interest in the whole of or any part of any lot or tract of land and any appurtenances or improvements that is acquired with the proceeds of a violation of title 39, chapter 17, part 4, constituting a felony, shall be subject to forfeiture and no property right shall exist in the property. (2) No interest in real property shall be forfeited under this section, unless the holder is convicted of a crime or crimes described in subdivision (a)(1)(A) or (a)(1)(B), subject to subsection (d). (b) Upon the entry of an order of forfeiture in favor of the state, the title of the state to the forfeited property shall relate back to the date of filing of the notice of lis pendens in the office of the register of deeds of the county in which the property or the beneficial interest is located. (c) (1) When a lis pendens is filed concerning property pursuant to this section, a forfeiture proceeding shall be instituted within sixty (60) days in the circuit or chancery court of the county where the property is located. (2) The complaint shall state a deed description of the property to be forfeited and the reasons for forfeiture under this section. (3) The complaint shall also name as defendants all persons having an interest in the property as reflected in public records. (4) The rules of civil procedure shall apply to proceedings under this section, and any named defendant may demand a jury trial in the appropriate circuit or chancery court. (d) (1) (A) The district attorney general for the judicial district in which the real property lies or the attorney general and reporter shall institute all civil proceedings under this section. (B) The district attorney general or the attorney general and reporter shall, prior to the filing or concurrent to the filing of a civil forfeiture suit, file a lis pendens in the county where the real property is located to assert an interest of record on behalf of the state in the real property subject to this section. (C) The failure of the district attorney general or attorney general and reporter to file a lien lis pendens shall not raise any defense on the part of any party named in the civil suit. (D) In any action brought under this section, the circuit or chancery court shall proceed as soon as practicable to the hearing and determination. (E) The state shall have the burden of proving beyond a reasonable doubt that the property was used in a manner making it subject to forfeiture or was acquired with proceeds that make it subject to forfeiture under this section. Failure to carry the burden of proof shall operate as a bar to any forfeiture under this section. (2) (A) In order to obtain a forfeiture of a holder's interest in real property, the state must establish: (i) The prior conviction or convictions of the holder; or (ii) If an entity other than a natural person, the conviction or convictions of the holder's officer, employee or agent. (B) If the holder's officer, employee or agent, but not the holder, has been convicted, then the state shall also have the burden to establish beyond a reasonable doubt the additional requirements in subdivision (d)(3), for forfeiture of the holder's interest. (3) The interest of a holder, if an entity other than a natural person, shall be subject to forfeiture if any of the following have been convicted: (A) The holder of the interest; or (B) The holder's officer, employee or agent, if: (i) The conviction is based on acts by the person in the course of and within the scope of the person's employment; and (ii) The holder knew, or had reason to know from information in the holder's possession, other than through its convicted officer, employee or agent, of the criminal nature of the acts. (e) (1) (A) The filing of an indictment, presentment or information alleging a violation of title 39, chapter 17, part 4 that is also related to a civil forfeiture proceeding under this section, shall stay the civil forfeiture proceeding. (B) The stay shall cease upon the termination of the trial of any criminal proceedings related to the forfeiture sought under this section. (C) Upon motion of the state and for good cause shown, the district attorney general or the attorney general and reporter may obtain an order that removes the stay from the court in which the forfeiture proceeding is pending. (2) Subject to the limitations of subsection (g), nothing in this section shall limit or restrict the right of a secured party possessing an interest in the property that was of record, prior to the filing of the notice of lien lis pendens, to enforce its deed of trust or to take any other action permitted under its deed of trust. (3) (A) If a notice of lien lis pendens has been filed prior to the filing of a civil action, the secured party shall give the district attorney general or attorney general and reporter who filed the lis pendens notice of any action taken under the mortgage or deed of trust. The secured party may not exercise its right to foreclose its deed of trust on the property, unless it gives the district attorney general or attorney general and reporter written notice at least twenty (20) days prior to the date of a foreclosure sale and indicates the time, date and place of sale and the balance owing on the debt. Upon receipt of the notice of foreclosure, the district attorney general or attorney general and reporter may apply to the circuit or chancery court to enjoin the foreclosure sale. (B) Upon completion of a foreclosure sale, the secured party or the secured party's trustee shall notify the district attorney general or attorney general and reporter in writing of the distribution of the proceeds of the sale. The secured party shall hold any proceeds in excess of the debt and fees and expenses secured by its deed of trust of the sale for a period of twenty (20) days. The district attorney general or attorney general and reporter may apply to the circuit or chancery court for an order directing the secured party to pay the overage proceeds into the court, subject to a civil action based on the notice of lien lis pendens. (4) Notwithstanding a stay in the civil proceeding, or during pendency of the case, a secured party or the secured party's trustee may apply to the court to foreclose its mortgage or deed of trust on the property. (f) In the event that a district attorney general or the attorney general and reporter has probable cause to believe that any individual having a right to enter the property is engaged in any act that will result in diminution of the value of the property to the state, then the district attorney general or the attorney general and reporter may obtain an injunction from the court in which the forfeiture proceeding is pending, enjoining any action diminishing the value of the property. (g) (1) Whenever property is forfeited under this section, the court may require the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee, or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118 , internal affairs director or internal affairs special agent of the department of correction, constable, or clerk of the court or special master to sell the property at a public auction, subject to an order of the court. Whenever property is forfeited under this section, the court may also, if appropriate, require that the department of general services take custody of the property and dispose of it at a public auction, subject to an order of the court. (2) The court, in lieu of a sale as provided in subdivision (g)(1), may order that the property be sold by any person having an interest in the real property whose interest has not been forfeited. The proceeds of the sale shall be subject to an order of the court. (3) (A) If the court orders a property interest in property owned as tenants in common forfeited under this section to be sold, whether by a public official as provided in subdivision (g)(1) or by a person having an interest in the property as in subdivision (g)(2), the innocent spouse of a person whose property interest has been forfeited shall have the same right to the property interest as granted an innocent spouse in subdivision (g)(4) or (g)(5). If there is no spouse or if the spouse does not elect to pursue the rights provided in subdivision (g)(4) or (g)(5), then any other person or persons whose interest in the property has not been forfeited shall have the first right to purchase the forfeited interest for its fair market value prior to the court ordered sale. In order to exercise the first right to purchase, the person or persons must petition the appropriate circuit or chancery court at least fifteen (15) days prior to the date the court ordered sale is to be conducted. If the person or persons do not purchase the forfeited property, the sale shall be conducted as provided by law. (B) For the purposes of subdivision (g)(3)(A), "fair market value" is determined by taking an average of three (3) appraisals conducted by separate and qualified real estate appraisers selected by the court. Before the purchase, the court shall approve the average of the appraisals for fair market value as reasonable. (4) (A) Notwithstanding subdivision (g)(3) to the contrary, if a court orders property forfeited under this section pursuant to subdivision (g)(1) or (g)(2) and the property is held through tenancy by the entirety and one (1) spouse's interest is not forfeited, then the spouse shall have the first right to purchase the forfeited expectancy interest in the property. (B) A spouse purchasing the forfeited property interest in the manner described in subdivision (g)(4)(A) shall take the property subject to all bona fide liens on the property. In order to exercise the right of purchase, the spouse shall petition the court in which the forfeiture proceeding is pending for the purchase at least fifteen (15) days prior to the court ordered sale. (C) If the spouse does not purchase the forfeited expectancy interest, the spouse shall retain the spouse's interest subject to all bona fide liens, and the forfeited expectancy interest shall be sold and the proceeds applied in the following manner: (i) Reasonable expenses of the proceedings for forfeiture and sale, including, but not limited to, expenses, seizure, maintenance of custody, advertising and court costs; and (ii) The remaining proceeds shall be distributed as provided in subdivision (h)(2). (D) If a party possessing a security interest in property being held by an innocent spouse institutes proceedings pursuant to its deed of trust, or otherwise, that results in the foreclosure and sale of the property, the innocent spouse shall be entitled to receive from the first proceeds of the sale an amount equal to an elective share as provided in § 31-4-101 , subject to bona fide outstanding liens not satisfied by the remainder of the proceeds. (E) If the innocent spouse predeceases the other spouse, if there are children of the innocent and guilty spouse, at least one (1) of whom is eighteen (18) years of age or younger on the date of the sale, and if the entity holding the right of expectancy is the state, then upon the sale of the property, one-third (1/3) of the proceeds from the sale shall be allocated and divided equally among all the children, subject to all outstanding bona fide liens not satisfied by the remainder of the proceeds. (5) (A) Notwithstanding subdivision (g)(3) to the contrary, if the property subject to forfeiture under this section is property titled solely in the name of a guilty spouse or titled in the name of the guilty spouse as tenants in common with any other person or persons, the innocent spouse may petition the court, at least thirty (30) days prior to the court ordered forfeiture sale, to have the court vest the ownership of the property in the couple as tenants by the entirety, and the innocent spouse shall have the same rights as provided in subdivision (g)(4). If the petition is timely filed, it shall be granted. (B) The filing of the petition shall act as a stay of any court ordered sale of the property and the stay shall remain in effect until disposition is made of the petition. (C) If the innocent spouse does not petition the court to vest the property ownership in the couple as tenants by the entirety, then the property shall be forfeited and disposed of as provided by this section. (6) Notwithstanding any other provision of this section to the contrary, the proceeds derived from the sale of property forfeited because it was acquired with the proceeds of a violation of title 39, chapter 17, part 4 shall be distributed solely as provided in subsection (h). (h) (1) The proceeds from any sale under subsection (g) shall be applied first to all reasonable expenses of the proceedings for forfeiture and sale, including, but not limited to, expenses, seizure, maintenance of custody, advertising, and court costs, and second to the satisfaction of all bona fide liens on the property. These liens and expenses shall be paid out of the proceeds before any allocation of proceeds required by subdivision (h)(2). (2) (A) Any proceeds received by any state agency pursuant to this section shall be allocated as follows: (i) Fifty percent (50%) of all proceeds resulting from actions of any state agency or awarded the agency in a division of funds shall be paid to the state treasurer to be used only for agency purposes as appropriated by the general assembly; (ii) Forty percent (40%) of all proceeds resulting from actions of any state agency or awarded the agency in a division of funds shall be paid to the state treasurer to be used only for the purpose of providing additional funds for the operation, maintenance and construction of prisons under the control of the department of correction as appropriated by the general assembly; and (iii) Ten percent (10%) of the proceeds shall be paid to the special drug case investigation fund created in subsection (j). (B) (i) Any proceeds received or produced as a result of the activities of a law enforcement agency of a local government shall be paid into the treasury of the respective local government. These proceeds may be appropriated by the local governmental body for any public purpose allowed by law. For purposes of this section, "local government" means a city, county or county with a metropolitan form of government. Any purchase made with these proceeds shall be made in accordance with all purchasing laws applicable to the particular local government. (ii) Subdivision (h)(2)(B)(i) regarding any purchase made with the proceeds being in accordance with purchasing laws does not apply in any county having a metropolitan form of government and a population in excess of five hundred thousand (500,000), according to the 1990 federal census or any subsequent federal census. (i) If more than one (1) law enforcement agency or department is involved in a seizure, then the court may divide the proceeds of property seized under this section among the agencies or departments involved in the seizure. (j) (1) There is created a special fund in the state treasury to be known as the special drug case investigation fund. Ten percent (10%) of all proceeds from any sale under this section shall be ordered paid into this fund by the court. (2) This fund shall finance investigations of complex drug offense cases by the Tennessee bureau of investigation and the attorney general and reporter involving civil forfeitures pursuant to title 39, chapter 12, part 2, or this section. (3) This fund shall not revert to the general fund on any June 30, but shall remain available for expenditure for its intended purposes. (k) (1) The attorney general and reporter is authorized to call on the assistance of the Tennessee bureau of investigation in the civil investigation of complex drug cases involving civil forfeiture proceedings brought by the bureau and the attorney general and reporter pursuant to title 39, chapter 12, part 2, or this section. (2) The Tennessee bureau of investigation is authorized to provide assistance to the attorney general and reporter as required for the civil investigation of complex drug cases involving civil forfeiture proceedings brought by the bureau and the attorney general and reporter pursuant to title 39, chapter 12, part 2, or this section.

Legislative History

Acts 1990, ch. 774, § 1; 1997 , ch. 56, §§ 6, 7; 2007 , ch. 106, § 10; 2010 , ch. 1040, § 9.